A Subpoena: The Other Exception to Confidentiality

Abstract

A good deal of attention is paid in counselor education programs to the significance of confidentiality and the rare categories of exception that would compel the counselor to break that sacred vow. The exceptions identified are danger to self, danger to others, and child abuse. In some states, additional mention is made of situations involving elder abuse. Rarely, however, do counselor educators discuss the impact of litigation on the sanctity of the counselor–client relationship and the ability of a subpoena to pierce the cloak of confidentiality that otherwise protects a client’s innermost thoughts and raw vulnerability. This article is an examination of the long arm of the court system and, by extension, the role of a subpoena as the often overlooked, other, exception to confidentiality. The effect of court involvement initiated either by the counselor’s client or by an opposing party on the counselor–client relationship should be clearly addressed in informed consent discussions and written documents to avoid unforeseen complications when a counselor receives and responds to a subpoena.

James and the Megan Family: Navigating Court and Allegations of Abuse

“…As noted above, CPS may have absolute authority to obtain information but, even so, should have to provide proof that they are who they say they are and that there is an open case with the family. It is not uncommon for court personnel to seem pushy in the quest for information, and it is wise to be cautious regarding the release of any information until it is clear that the request is legitimate and authorized (Barsky & Gould, 2002; Ordway & Casasnovas, 2019).…”

“…In contrast, a counselor is not expected to write reports, refrains from giving an opinion beyond the prognosis of the specific client, and rarely testifies unless subpoenaed. It can be dangerous for a counselor to morph from one role into another (Ordway & Casasnovas, 2019). James is being asked to morph from the regular family counselor for the Megans, with a pointed objective focused on better communication to a forensic role, through which he would answer to CPS and the court.…”

“…Notwithstanding traditional parameters of confidentiality, a subpoena is a long arm of the courts and a vehicle through which an attorney can obtain records and information for an active litigation (Ordway & Casasnovas, 2019). CPS in most jurisdictions has the power to obtain necessary records associated with pending investigations related to the protection of minors.…”

“…CPS in most jurisdictions has the power to obtain necessary records associated with pending investigations related to the protection of minors. It is important for counselors to be familiar with laws and regulations in their jurisdictions and to consult with an attorney about the validity of a request before releasing information pertaining to a client (Ordway & Casasnovas, 2019). Because many counselor education programs do not adequately address training counselors for court-involved work, counselors often either experience heightened anxiety at the prospect of participating as a witness in litigation or experience a heightened sense of confidence.…”

“…There is a fine line between a fact witness and an expert witness (Barsky & Gould, 2002; Ordway & Casasnovas, 2019). Currently, CPS is seeking James’ records and a factual account of the previous counseling work with the Megans.…”